Maintaining control after preparing an LPA

Lasting Powers of Attorney (“LPAs”) are a means of preparing for the future. However, many clients come to us with concerns that signing a Property and Financial Affairs LPA will force them to hand over control of their finances to their attorneys.

What safeguards are in place to protect you?

To address this common concern, we have taken a look at the safeguards built into LPAs and the extra steps you can take.

1 – Rethinking your choice of attorneys

The success of an LPA depends on your choice of attorney. If you are concerned your attorneys will act without your consent or before it is necessary, you may wish to reconsider their appointment.

Appointing attorneys you trust is the best form of control.

2 – Restricting the use of the LPA

When drafting your LPA, you will need to decide when you want your attorneys to make decisions.

You can prepare your LPA so that it can only be used if you lack mental capacity. If this is the case, your attorneys would need to prove that you are unable to make the decision in question before acting, usually by obtaining a capacity report from a doctor.

This restriction ensures that you remain in control of your finances until a doctor deems that you are unable to make decisions for yourself.

3 – Inserting checks and balances into the LPA

If you want your attorneys’ actions closely monitored, you can build safeguards into your LPA to control their actions.

For example, you can include an instruction requiring that they produce annual accounts for the benefit of a named third party. This might be an independent family member or friend or could even be a professional. The third party can then scrutinise their actions to protect you and your estate.

4 – Releasing the original LPA and certified copies

When seeking to act under the LPA and gain control over your finances, your attorneys will need to present your LPA (or a certified copy) to the companies and organisations dealing with your affairs.

If your LPA is capable of use before the loss of mental capacity, it would be sensible to limit access to the original document.

You should not release copies to your attorneys until you want them to act.

5 – Ending your LPA

It is important to remember that you can end your LPA at any time while you have mental capacity. If you change your mind about your attorneys, you may be able to end the LPA and make a new one.

By meeting with a solicitor, you will be able to discuss the scope of your attorneys’ authority, their responsibilities under the Mental Capacity Act 2005 and the oversight system in place for attorneys.

If you would like to discuss preparing a Lasting Power of Attorney, please click here for our contact details. We would be happy to help.

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